Suit v. State, 27279

• Decision Date: 19 January 1955
• Docket Number: No. 27279,27279
• Citation: 274 S.W.2d 701,161 Tex.Crim. 22
• Parties: Lowell SUIT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 701

274 S.W.2d 701

161 Tex.Crim. 22

Lowell SUIT, Appellant, v. The STATE of Texas, Appellee.

No. 27279.

Court of Criminal Appeals of Texas.

Jan. 19, 1955.

Clyde W. Woody, Houston, for appellant.

Dan Walton, Dist. Atty., Houston, Eugene Brady, Jr., Asst. Dist. Atty., Wesley Dice, State's Atty., Austin, for the State.

WOODLEY, Judge.

The Grand Jury for the November Term, 1953, of the Criminal District Court No. 3 of Harris County, on April 15, 1954, returned an indictment against appellant charging him with having sold heroin, a narcotic drug, to one Bob Richards on or about February 27, 1954.

The November term of said Criminal District Court No. 3 of Harris County by law begins on the first Monday in November, and continues until the business is disposed of. Another term begins on the first Monday in February.

The indictment was therefore returned during the February term by the Grand Jury for the prior November term.

Appellant, having been convicted under said indictment and assessed a term of ten years in the penitentiary, has appealed and assigns as his first ground for reversal the invalidity of the indictment, a question not raised in the trial court.

The question calls for a construction of Art. 338a V.A.C.C.P. (applicable to counties of over 500,000 population) pursuant to which the trial judge during the November term, 1953, of said court entered the following order:

'It having been made known to me, as Judge of the Criminal District Court No. 3 of Harris County, Texas, by the declaration of the Foreman of the Grand Jury of this County and State, which Grand Jury has not adjourned, and the Term of this Court expiring on January 30th, 1954, that the Investigation of the Grand Jury of the matters now before it cannot be concluded before the expiration of the said Term, and I being the Judge of said Court in which the said Grand Jury was empanelled do hereby extend for a period of ninety days after the expiration of said November Term, A.D. 1953, during which period said Grand Jury shall sit for the purpose of concluding the matters now before said Grand Jury, and the Clerk of this Court is hereby ordered to enter this order on the minutes of this Court.'

It is appellant's contention that since the order empowered the Grand Jury only to conclude matters then before it and the act charged did not occur until after the November Term had expired, the act for which appellant was indicted was not and could not have been a matter before said Grand Jury at the November Term which could not be concluded before the expiration of said term.

The State contends that Art. 338a C.C.P. does not require that the particular defendant be under investigation by the Grand Jury during the term for the particular offense for which an indictment is returned after the order of extension was entered, and points to that part of the statute which provides 'and all indictments returned by the grand jury within said extended period shall be as valid as if returned before the expiration of the term.'

The question not having been raised in the trial court, the record is rather meager as to the activity of the Grand Jury which returned the indictment. It is shown, however, that the State's witness Bob Richards and three other employees of the Narcotics Division of the Department of Public Safety were engaged in accumulating evidence in narcotics cases from January 20th or 29th until April 9th, as a result of which the witness Richards charged 29 people before the Grand Jury.

W. E. Naylor, Chief of...